Pat McDonough and Trinity Hundredmark Win Appeal for Kenerly
On September 14, 2009, the Gwinnett County District Attorney, Danny Porter, requested that a special purpose grand jury be impaneled to investigate “[t]he acquisition of real property by the Gwinnett County Board of Commissioners.”
On September 23, 2009, the Chief Judge of the Gwinnett County Superior Court entered an Order impaneling a special purpose grand jury. At the time when the Special Purpose Grand Jury was impaneled, Kevin Kenerly was the County Commissionerfor District 4 of Gwinnett County.
Kenerly filed an Objection and Challenge to the Gwinnett County Special Purpose Grand Jury. The trial court held that “the Special Purpose Grand Jury was empowered to return criminal indictments based upon facts discovered during its investigation.”
Thereafter, Kenerly was indicted by the Special Purpose Grand Jury on October 11, 2010. Kenerly’s attorneys, Patrick J. McDonough and Trinity Hundredmark, appealed to the Court of Appeals of Georgia, and argued that the legislative intent behind the statutes governing special purpose grand juries was clear from their plain language, meaning that special purpose grand juries only have the power to investigate and report, not indict. “A special purpose grand jury has an investigative function similar to the FBI, GBI or the police, none of which have the power to indict,” McDonough explained.
On July 6, 2011, the Court of Appeals agreed with McDonough and Hundredmark, reversed the trial court’s decision and held that a special purpose grand jury was not authorized to return a criminal indictment.
The District Attorney then appealed to the Supreme Court of Georgia. On March 5, 2012 the Supreme Court denied the District Attorney’s petition for certiorari. As a result, the indictment against Kenerly was dismissed.